This is a succinct summary of an apparent intuitive case. To the layman (such as myself!), it’s almost incomprehensible that scholars/jurists would be so parochial. Of course, there are variety of economic/systemic drivers - but still perplexing that the framework is virtually unchecked when history is replete with answers. Thanks for these lucid pieces!
Is it relevant here that early English legal discussion seemed to place "the ancient customs of England" as an equal source of law along with the common law, statute and royal prerogative?
I would like to expound briefly on the analogy to “degenerating research programme” at the top of the essay.
Whereas the scientific method is a process of ascertaining truth [small “t”] involving making an abundance of observations, forming a hypothesis based on the observations, gathering data to test the hypothesis and rendering a conclusion re the specific hypothesis as stated and delineated by the scope of the observed data, it seems to me the Originalist method is one which *reverses* the ordering of the process. That is to say, it *pre-selects* a preferred conclusion that fits the originalist’s personal ethos or political identity and deploys purely rhetorical arguments to reach the conclusion, paying no heed to observed data, indeed proffering none.
What then is Tradition in this context? Tradition is the customs or beliefs passed from generation to generation that have survived the Hypothesis-Testing of Time [“Time” in denominations of centuries and millennia, not election cycles]. Until and unless the Originalist’s methodology offers an approach to interpretation of the Constitutional more firmly grounded in testable hypotheses, I submit it remains at best an unreliable approach to the jurisprudence of Constitutional Law. At worst, fickle.
Great point - indeed
Originalism forces you to shut half your brain off - the half that interprets reality.
Lol indeed.
This is a succinct summary of an apparent intuitive case. To the layman (such as myself!), it’s almost incomprehensible that scholars/jurists would be so parochial. Of course, there are variety of economic/systemic drivers - but still perplexing that the framework is virtually unchecked when history is replete with answers. Thanks for these lucid pieces!
Thanks and share your sense of puzzlement - it’s very odd. Cheers!
Is it relevant here that early English legal discussion seemed to place "the ancient customs of England" as an equal source of law along with the common law, statute and royal prerogative?
I would like to expound briefly on the analogy to “degenerating research programme” at the top of the essay.
Whereas the scientific method is a process of ascertaining truth [small “t”] involving making an abundance of observations, forming a hypothesis based on the observations, gathering data to test the hypothesis and rendering a conclusion re the specific hypothesis as stated and delineated by the scope of the observed data, it seems to me the Originalist method is one which *reverses* the ordering of the process. That is to say, it *pre-selects* a preferred conclusion that fits the originalist’s personal ethos or political identity and deploys purely rhetorical arguments to reach the conclusion, paying no heed to observed data, indeed proffering none.
What then is Tradition in this context? Tradition is the customs or beliefs passed from generation to generation that have survived the Hypothesis-Testing of Time [“Time” in denominations of centuries and millennia, not election cycles]. Until and unless the Originalist’s methodology offers an approach to interpretation of the Constitutional more firmly grounded in testable hypotheses, I submit it remains at best an unreliable approach to the jurisprudence of Constitutional Law. At worst, fickle.